Putting an end to the confusion that prevailed among Immigration Practitioners for almost two decades, the Administrative Appeals Office (AAO), in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), on April 9, 2015, clarified that an Amended H-1B Petition[1] is required to be submitted to United States Citizenship and Immigration Services (USCIS) when moving an H-1B worker from one work location to another[2]. Although the holding of this “seminal decision” categorically refers to a move from one Metropolitan Statistical Area (MSA)[3] to another, through dicta, it is logical to conclude that an Amended H-1B Petition would also be required even if the move pertains to within the same MSA.

The AAO in Simeio Solutions categorically stated that: “A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-IB status; it is therefore a material change for purposes of 8 C.F.R. §§ 2l4.2(h)(2)(i)(E) and (11)(i)(A) (2014).” (emphasis added)

Further, the AAO specified that “[b]y failing to file an amended petition with a new LCA, or by attempting to submit a preexisting LCA that has never been certified to USCIS with respect to a specific worker, a petitioner may impede efforts to verify wages and working conditions. Full compliance with the LCA and H-1B petition process, including adhering to the proper sequence of submissions to DOL and USCIS, is critical to the United States worker protection scheme established in the Act and necessary for H-1B visa petition approval.” (emphasis added)

What is a “Material change?”

Quoting the regulations[4], AAO stated that provided the petitioner continues to employ the beneficiary, any change(s) in the terms and conditions of employment of a beneficiary which may affect eligibility for H-1B status is a material change. As such, a Petitioner must immediately notify the USCIS by submitting an H-1B Amended Petition. Thus, in simple terms, any change in the terms and conditions of employment of a beneficiary that may affect eligibility under Section 101(a)(15)(H) of the Immigration and Nationality Act (INA) is deemed to be a material change. See 8 C.F.R. § 214.2(h)(2)(i)(E).

Change in Beneficiary’s Work Location outside the MSA listed on LCA is a Material Change.

Section 212(n)(1)(A)(i) of the Act, 8 U.S.C. § 1182(n)(l )(A)(i) (2012), requires an employer to pay an H-1B worker the higher of either the prevailing wage for the occupational classification in the “area of employment” or the actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services.

In Simeio Solutions, the AAO stated that because section 212(n) of the Act ties the prevailing wage to the “area of employment,” a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material for both the LCA and the Form 1-129 visa petition, since such a change may affect eligibility under section 101 (a)(15)(H) of the Act. As such, such changes could require an Amended or new H-1B Petition, along with correspond